Is There a Safe Plea for Non-Citizens Charged with Solicitation of Prostitution?

3019 Minnehaha Avenue, Suite 200 Minneapolis, MN 55406

612.436.7100 www.wilsonlg.com

Is there a Safe Plea for Non-Citizens Charged with Solicitation of Prostitution?

Happy New Year, and welcome to the latest Wilson that there was an offer of sex, and whether the client Law Group Newsletter. In our July 2013 issue, actually accepted the offer. Wilson Law Group addressed domestic assault. In this edition, we focus on solicitation of prostitution. The first question is whether solicitation of a prostitute The spate of prostitution sting operations – including under Minnesota Statute § 609.324 subd. 3(2) (2013) is the arrest of nineteen people in Mounds View, MN a removable offense. The short answer is that a single at the end of October 2013 – has brought the issue of instance of a patron seeking to hire a prostitute will representing immigrants facing a charge of solicitation not automatically make a non-citizen removable from of prostitution to the forefront. Between the increase the United States. Solicitation, however, is potentially in arrests and the lack of clarity in the federal law, a crime involving moral turpitude (hereinafter representing non-citizens in these types of criminal “CIMT”). Thus, a conviction can become the basis cases requires extra care. for seeking someone’s removal from the United States depending on the sentence, the defendant’s criminal Defendants caught in a prostitution sting usually fall history, and the timing of the initial arrest. into one of two categories: car encounters between defendants and undercover officers, or hotel meetings For example, if a non-citizen defendant is convicted of arranged after a defendant responds to an undercover two or more CIMTs not arising out of the same scheme officer’s online advertisement, such as those listed on of conduct, the defendant would be removable. If this backpage.com, which is a website that includes ads for is the defendant’s first CIMT conviction, the offense escort and massage services. Many criminal defense may satisfy the petty-offense exception, which means attorneys have heard the familiar story from clients that the offense is not enough by itself to render the who say they were in their car, minding their own person removable from the United States. In the case business, when a nice woman tried to talk to them. of an undocumented individual, the offense would not Alternatively, they somehow ended up at a hotel after pose a per se bar to him or her to apply for relief before calling a number they found on backpage.com. the immigration court. The petty offense exception allows a defendant with no legal status to qualify In either scenario, a defendant may deny that he was for cancelation of removal if he is convicted under a actually seeking sex. Non-citizen defendants who are misdemeanor statute that carries a maximum sentence not native-English speakers may not have understood of no more than 1 year in prison, and he receives a the undercover police officer’s questions and stayed or executed sentence of less than 6 months. directions. Be sure to address this potential issue with Even with the petty offense exception, if a non-citizen your non-citizen clients. Audio and video recordings defendant has more than one CIMT on his or her are common in these types of arrests, and may prove record, whether one or all could qualify as a petty vital in presenting a language barrier defense. A offense, the non-citizen is removable, inadmissible defense attorney should review these recordings with and often ineligible for relief. their client and assess whether the client understood Continued on page 2

Matter of Gonzalez-Zoquipan, 24 I. & N. Dec. 549, 552-54, (BIA 2008). There is no statutory definition of Crime Involving Moral Turpitude (CIMT). If the crime is considered a CIMT by the immigration court and it is not a misdemeanor level offense, it is a removable crime. 8 U.S.C. § 1227 (a)(2)(A)(ii). 8 U.S.C. § 1227 (a)(2)(A)(ii).

612.436.7100 www.wilsonlg.com

Is there a Safe Plea for Non-Citizens Charged with Solicitation of Prostitution? Continued

There is a notable difference in the immigration context § 212 (a)(2)(D)). between trying to obtain a prostitute for oneself as a patron and being involved in procuring others for Good moral character is also an issue for legal prostitution or receiving the proceeds from prostitution, permanent residents seeking to become U.S. citizens, as such as pimping or other conduct that would constitute U.S. Citizenship and Immigration Services will focus promotion of prostitution. If a defendant is convicted on an applicant’s moral wholesomeness demonstrated of an offense involving the latter, he would not be able during the five years preceding the application. A to establish the good moral character required for naturalization applicant with a criminal conviction cancelation of removal or voluntary departure, and he for solicitation of prostitution should consult with an would be inadmissible under INA § 212 (a)(2)(D). For immigration attorney before applying. that reason, during the allocution of a guilty plea to a The best outcome for a non-citizen charged with solicitation offense, it is important that a defendant only a solicitation related offense is a continuance for allocutes to facts relating to seeking to hire a prostitute. dismissal, or a plea to public nuisance under Minnesota A conviction for solicitation could cause some non-cit- Statute § 609.74, without any admission of facts related izens issues when they travel abroad and attempt to to prostitution. These outcomes are often hard to obtain re-enter the United States. A legal resident, for exam- because prosecutors are often reluctant to offer a non- ple, must be advised that a single conviction for so- enhanceable offense in place of an enhanceable one. licitation could make him inadmissible, meaning if he A plea to loitering with intent to solicit is likely not a were to leave the country he could be denied re-entry. better outcome for a non-citizen because it could also There is an unresolved split between the 8th Circuit be viewed as a CIMT. Ultimately, what truly matters is and the Board of Immigration Appeals on this issue. the defendant’s admissions. Even if loitering may seem Compare Amador-Palomares v. Ashcroft, 382 F.3d 864 like a better conviction, any admission to prostitution- (8th Cir. 2004) (upholding the Immigration Judge’s related conduct is construable as solicitation of finding that Respondent’s one conviction for attempt- prostitution. If your non-citizen client or a defendant ing to solicit a prostitute rendered him ineligible for is contemplating a guilty plea to a prostitution charge suspension of deportation because he lacked good and you are not sure how to advise him or her of the moral character under INA § 212 (a)(2)(D)) with Mat- potential consequences, contact one of the immigration ter of Gonzalez-Zoquiapan, 24 I. & N. Dec. 549 (BIA attorneys at Wilson Law Group at 612-436-7100. 2008) (rejecting Amador-Palomares and finding that one instance of soliciting a prostitute for oneself did not qualify as “procuring” within the meaning of INA

Id. See INA § 240B for other requirements for non-legal permanent resident cancelation of removal. INA §§ 240A (b)(1)(C) and 212 (a)(2)(A)(ii)(II), see Matter of Garcia-Hernandez, 231 I & N Dec. 590 (BIA 2002). 8 U.S.C. § 1227 (a)(2)(A)(ii). Matter of Gonzalez-Zoquipan, 24 I & N Dec. at 551-54. INA § 101 (f) (3), 8 U.S.C. § 1101 (f) (3). INA § 240A (b) (1) (B). INA § 240B (b) (1) (B).